State v. Nokes
In State v. Nokes, 44 Conn. App. 40, 44, 686 A.2d 999 (1996), the Court concluded that an instruction regarding 14-227a (c), which was cast in rebuttable presumption language, even though such language was used in the statute, was improper. The Court further concluded that although the instruction was improper, any error was harmless. The Court based its decision on State v. Gerardi, 237 Conn. 348, at 356, 677 A.2d 937 (1996), in which our Supreme Court held that an instruction containing rebuttable presumption language violated the due process clause and that the error was not harmless beyond a reasonable doubt.
The trial court in Gerardi charged the jury in terms of a mandatory rebuttable presumption rather than a permissive inference when instructing on possession of a machine gun for an aggressive or offensive purpose pursuant to General Statutes 53-202 (d), (e) and (g).
"In Gerardi, our Supreme Court concluded that the legislature could not have intended that the jury be required to infer that a defendant possessed a machine gun for an offensive or aggressive purpose from the mere fact that the gun was unregistered or that the jury was required to infer that all the occupants of a vehicle possess a machine gun simply because it is located in that car. The legislature could have intended only that a jury may infer possession under appropriate factual circumstances." State v. Nokes, supra, at 45-46.
"Although the Gerardi charge did not specifically instruct the jury that it was the defendant's burden to rebut the presumptive evidence, that was clearly the implication of the words used. The Nokes charge did not inform the jury that a presumption was to be taken as sufficient proof by itself of an element of the crime, but it did require the presumptions to be overcome by the defendant through the introduction of other evidence and allowed the jury to decide whether the defendant's evidence successfully rebutted the presumptions." (Internal quotation marks omitted.) Id., at 43-44. Like the instruction in Nokes, the court's instruction here did not inform the jury that a presumption was to be taken as sufficient proof by itself of an element of the crime, but it did require the presumptions to be considered with "other aspects of the particular statute" and allowed the jury to "accept the rebuttable presumption unless you feel that it hasn't been established." See footnote 4. Pursuant to Nokes, we conclude that the trial court's jury instructions were improper.
The Nokes court, however, determined that even though the instruction was improper, it was harmless. We now must determine whether the instruction here was harmless beyond a reasonable doubt. See id., at 44.